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Pasqua v. Masone

August 19, 2010


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1122-08.

Per curiam.


Argued May 3, 2010

Before Judges Rodríguez, Yannotti, and Chambers.

Plaintiff Dr. Vincent Pasqua (Vincent), administrator of the estate of his mother, Madeline Pasqua (Madeline), appeals from a February 20, 2009 order denying reconsideration of the summary judgment dismissal of the estate's complaint against defendants Michael Masone (Masone) and his law firm, Raff & Masone, on the basis that the complaint was barred by the six-year statute of limitations for legal malpractice claims.*fn1 We affirm.

These are the pertinent facts. According to Vincent's amended complaint, Madeline fell in May 1992 and suffered "traumatic injuries" that left her with "severe and lasting diminish[ed]... cognitive functions." Defendant Andrew Pasqua (Andrew) hired Masone to represent Madeline in a tort action. Andrew was a stockbroker and Masone was one of Andrew's clients.

On August 28, 1992, Madeline signed a will, power of attorney, and a management trust/revocable living trust agreement naming Andrew as trustee. Masone prepared the documents for her. A subsequent will was signed on November 28, 1992, naming Andrew as the executor. According to Vincent, "the wills in question resulted in [Andrew's] share of [Madeline's] estate increasing from one-third to fifty percent and his lineal descendants receiving an additional [twenty-five percent]."

On January 8, 1999, Madeline filed a complaint against Andrew, his wife, and his daughter, alleging breach of fiduciary duty and conversion. According to the complaint, Andrew and his family depleted Madeline's bank accounts and other assets.*fn2

Madeline died on June 10, 1999. Soon after, Madeline's grandchildren began questioning the disbursements made from her estate. For example, on August 10, 1999, Anthony Pasqua wrote to Masone questioning amounts distributed to Andrew, his daughter, and her spouse:

The... disbursements [to Andrew and his family] are inconsistent with [Madeline's] plans and desires as related to me and my family. I am unsettled as to the disbursements and the fact that Andrew and Kathleen Pasqua, as well as [their] daughter Andrea Magner and her spouse, benefited disproportionately from these disbursements.

On November 8, 1999, Andrew filed a complaint to admit the initial August 28, 1992 will into probate. Vincent sought to challenge the will and deposed Masone on January 24, 2002. Vincent's attorney asked Masone numerous questions relating to his relationship with Andrew, as well as questions about Madeline's mental state. Masone conceded that Andrew was his stockbroker and that he had never met Madeline prior to discussing a possible tort action with her in June or July 1992. According to Masone, Madeline said she wanted Andrew to tend to her affairs because she was not able to get around well. Masone discussed various legal options and Madeline presented a February 19, 1987 will and said she wanted to modify it. She also asked Masone to draft the revocable trust for her.

During the deposition, Vincent's attorney continued to press Masone about Madeline's mental status, but Masone said that Madeline understood what he was saying and was able to read the will on her own. The attorney pointed out the discrepancy between the depictions of Madeline's health in hospital records and Masone's claim that she was cognizant and healthy. The attorney also questioned whether Masone was adequately representing Madeline and whether he paid attention to the expenditures from the trust account.

Masone was deposed for a second day on February 27, 2002. During the deposition, Vincent's attorney continued to question the trust disbursements and Madeline's capacity when she met with Masone. Masone said that he sent Vincent's attorney a letter in June 1998, detailing "what we had done, disbursements that were made, and then, ultimately, we just followed it up with the information that they requested." Masone felt these requests were made because "I guess he was making inquiries into whether or not they should be filing some sort of an action. He wanted to know what was [happening]."

On or about November 11, 2004, Andrew filed an order to show cause and verified complaint seeking to admit the November 28, 1992 will to probate and appoint himself as an administrator under the trust. On December 1, 2004, Vincent and his brother, Joseph Pasqua, filed an answer alleging undue influence and lack of testamentary capacity.

Vincent's attorney deposed Masone again on May 18, 2005. The line of questioning this time focused primarily on ...

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